VIRENDRA KUMAR PAREEK Vs. MODERN FOOD INDUSTRIES LTD

JUDGEMENT

(1.) THE petitioner's case is that he had been appointed as Fitter with the respondents on 7. 05. 1986 and continued till 7th Jan. , 1987 on a salary of Rs. 600/- per month. THEre is a certificate issued by the respondent itself on 1. 07. 1987 certifying that the petitioner worked with the organisation from 7. 05. 1986 to 7. 01. 1987 as ad hoc Fitter (Elect.) at consolidated pay @ Rs. 600/- per month. This period comes out to be 246 days. THEreafter according to the petitioner he was working from 1. 05. 1987 to 30th June 1987. He was then appointed on 14. 11. 1987 and worked upto 31. 05. 1988. Of course, it is mentioned in the certificate dated 1. 07. 1987, Annx. 2 filed by the petitioner that he had never completed 240 days in 12 calendar months, but the Court has to examine as to whether according to law, the petitioner can be treated to have completed 240 days so as to ensure benefits of the provisions of Sec. 25-F of the Industrial Disputes Act, 1947. It is the case of the respondents, as per their reply admitting the petitioner's working from 1. 6. 1987 to 20. 6. 87,1. 7. 87 to 2. 7. 87and 4. 7. 1987 and from 7. 7. 1987 to 10. 7. 1987 and again from 4. 11. 1987 to 4. 6. 1988 he was engaged on temporary ad hoc basis on a consolidated salary of Rs. 600/- per month. It has been further submitted that the petitioner himself had applied for the posts of Bakery Attendant as well as Fitter, but he was not selected for either of the two posts. THE learned counsel for the respondents has submitted that the petitioner cannot be said to have completed 240 days at any time and, therefore, he was not entitled to the benefit of the provisions of Sec. 25 F at the time when his services were terminated on 4. 06. 1987 (sic 1988 ). Shri Garg, appearing for respondents, has also submitted that working on daily wages by the employees do not entitle them to claim wages for Sundays and holidays and, therefore, the petitioner is also not entitled for the benefits under the provisions of Sec. 25 F. First of all, it may be mentioned that it is an admitted case that the petitioner had worked on a consolidated salary of Rs. 600/- per month from 7. 5. 1986 to 7. 1. 1987 and this period comes to 246 days, i. e. , more than 240 days and, thus, the petitioner was entitled to claim retrenchment benefit when his services were terminated on 7. 1. 1987, but the said provisions of Sec. 25 F were not followed. Even thereafter the petitioner has worked from 1. 7. 1987 to 4. 6. 1988, of course with breaks as may be made out on the basis of the dates that have been given above. During this period, there are certain breaks and there is also a break from August to October, 1987. Looking to the entirety of the case, it cannot be said that the petitioner has not completed 240 days so as to claim the benefit of the provisions of Sec. 25-F of the Act. Shri Suresh Pareek, appearing for the petitioner, has placed reliance on Prabhu Dayal vs. Alwar SBVB Ltd. & ors (1) and Tarlok Singh vs. Labour Court, Jalandhar & ors. (2)In case the breaks which were given to the petitioner during the period June, 1987 to 4. 06. 1989 (sic 1988) are treated as notional breaks he completes 240 days even for this period and he is entitled to the benefits under the provisions of Sec. 25-F. Regarding the allegation that the petitioner was not selected for either of the posts of Bakery Attendant or Fitter, Shri Pareek submits that this is not at all relevant for the purpose of determining the question of entitlement for benefit under Sec. 25 F. Such consideration may be relevant for the purpose of giving regular appointment to the petitioner. On that basis, if the services are sought to be terminated the provisions of Sec. 25 F have got to be followed. Since in this case, I have come to a finding that the petitioner had completed 240 days and could claim the benefit under the provisions of Sec. 25 F and, admittedly the provisions of sec. 25 F. have not been followed while retrenching petitioner, the impugned retrenchment ordered verbally on 4. 6. 88 cannot be sustained in the eye of law.

(2.) THE respondents are directed to reinstate the petitioner as if he had never been terminated on 4. 06. 1988 and he will be deemed to be continuing in service and shall be reinstated with all consequential benefits for the intervening period subject to the petitioner's filing an affidavit to the effect that he was not gainfully employed. THE respondents may, however, verify the veracity of the petitioner's affidavit with regard to gainful employment within a period of one month of filing of such an affidavit and if any material is not found to disbelieve such affidavit, the benefits for the intervening period will be paid to the petitioner within three months thereafter.